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Downloaded from Brill.Com10/01/2021 11:15:44AM Via Free Access Xiv Table of Contents TABLE OF CONTENTS FOREWORD vii PREFACE ix ABBREVIATIONS xx iii PART ONE PRELIMINARY INTRODUCTION 3 I HISTORICAL OVERVIEW 17 1 Historical Excursus up to 1878 18 2 British Rule 20 2.1 The 1878-1955 Period 20 2.2 The 1955-1959 Period 24 3 The 1960 Constitution 25 3.1 Executive 27 3.2 Legislature 28 3.3 Communal Chambers 28 3.4 Judiciary 29 3.5 Other Provisions 30 4 Constitutional Difficulties 30 5 The 13 Proposals to amend the Constitution and the Intercommunal Conflict that followed 33 6 The Coup and the Invasion 36 Chronological Table of the main Developments of the Cyprus Problem and the Negotiations for its Solution from 1974 to the Present Day 37 Dr. Kypros Chrysostomides - 9789004482647 Downloaded from Brill.com10/01/2021 11:15:44AM via free access xiv Table of contents PART TWO ESTABLISHMENT - CRISIS AND CONTINUITY (1960-1974) II THE CREATION OF THE REPUBLIC OF CYPRUS 49 1 The Emergence of Statehood 49 1.1 Devolution of Sovereignty 51 1.2 Unitary State 53 1.3 "Imposed" Constitution - the Notion of the "People of Cyprus" 58 2 "Succession of States" in International Law. The Provisions in the Treaty of Establishment 62 3 Recognition 65 3.1 "Collective recognition" 65 3.2 The characteristics of Statehood 66 3.3 "Independence" - "Sovereignty" 67 4 "Limitations" to the Independence of Cyprus? 69 4.1 The Treaty of Alliance and the Treaty of Guarantee 70 4.2 Legal Evaluation of the Treaties 72 4.3 Restrictions as to Amendments of the 1960 Constitution 75 4.4 Military or Territorial Concessions 76 5 The Legal Status of the Sovereign Base Areas 77 5.1 The Treaties Establishing the SBAs 77 5.2 The Status of the SBAs under the Law of the United Kingdom 81 5.3 The Status of the SBAs under the Law of the Republic of Cyprus 83 5.4 The Status of the SBAs under Public International Law 86 5.4.1 Are the SBAs a State or another Related Form? 87 5.4.2 Are the SBAs a "Colony" under International Law? 88 5.4.3 Are the SBAs a "Servitude" under International Law? 88 III CRISIS AND CONTINUITY OF THE REPUBLIC OF CYPRUS (1963- 1964 AND 1974 COUP) 91 1 The 1963-1964 Crisis and International Law 91 2 The Stand taken by the International Community 94 2.1 Great Britain 94 2.2 The Security Council of the United Nations 95 2.3 The United Nations General Assembly 96 Dr. Kypros Chrysostomides - 9789004482647 Downloaded from Brill.com10/01/2021 11:15:44AM via free access Table of contents xv 2.4 International Treaties concluded by the Republic of Cyprus 1963-1974 97 2.5 The Position taken by the Turkish side 97 3 Internal Changes not impinging on the Continuity of a State 99 4 The Doctrine of Necessity (salus populi, suprema lex) and the Preservation of the Legal Order 100 4.1 The Attorney General of the Republic v. Mustafa Ibrahim 101 4.2 Method of introduction of the Doctrine and its Legal Rank examined through the Ibrahim Case 101 4.3 Wide Acceptance of the Doctrine of Necessity 105 5 The Coup d'Etat of 1974 110 PART THREE INVASION AND OCCUPATION 1974 AND AFI'ER IV THE MILITARY INVASION OF 1974 AND THE CONTINUATION OF THE OCCUPATION 117 1 The Armed Attack 117 2 1974 - "Armed Conflict" between Cyprus and Turkey 118 3 The Illegality of the Invasion 121 3.1 The Limits of the Right to use Force 121 3.2 Article II of the Treaty of Guarantee 123 3.3 Article IV of the Treaty of Guarantee 125 3.4 Analysis by R.St. J. MacDonald 127 3.5 The Second Phase of the Invasion - 14th August 1974 129 4 The Argument of "Humanitarian Intervention" 131 4.1 The Criteria for a "Humanitarian Intervention" 135 4.2 Limitations to "Humanitarian Intervention" 137 4.3 The Kosovo Crisis 138 5 Illegal Military Occupation from 1974 to the present day 141 5.1 Has Turkey become a Belligerent Occupant of the northern part of Cyprus? 141 5.2 The Continued Presence of Turkey in Cyprus is Illegal 145 5.3 The Decision of the European Commission of Human Rights in Application No. 8007/77, Cyprus v. Turkey 146 5.4 Decisions - Resolutions of the United Nations 147 5.5 Has the Illegal Occupation ended? 152 Dr. Kypros Chrysostomides - 9789004482647 Downloaded from Brill.com10/01/2021 11:15:44AM via free access xvi Table of contents 5.6 The Temporary Character of the Occupation and the Continuation of the Sovereignty and the International Personality of a State under Occupation 155 v THE EFFECTS OF THE TURKISH INVASION - "ETHNIC CLEANSING" 159 A Introduction 159 1 "Ethnic Cleansing" - A Novel Term? 159 2 Applicability of the law on Human Rights and the relevant Treaties also in Armed Conflict and in Conditions of Occupation 163 3 Applications of Cyprus against Turkey before the ECHR and the ECourtHR - An Overview 166 B Violations of personal rights in the occupied territory in Cyprus 171 Displacement of Persons (Refugees) 171 2 Deprivation of Liberty 175 3 Deprivation of Life 176 4 Ill-treatment 177 5 Missing Persons - unaccounted for since 1974 177 6 Persons Enclaved in the Occupied Area 181 c Violations of property rights in the occupied territory in Cyprus 184 1 General Remarks on the Right to Property 184 2 The Current Situation in the Occupied Territory of Cyprus 186 2.1 The European Commission of Human Rights 186 2.2 The European Court of Human Rights - Loizidou v. Turkey 189 2.3 Provisions of the International Law of Armed Conflicts regarding Private Property 192 2.4 Ecclesiastical and Cultural Property 194 2.5 Settlers and the Provisions of the Hague Regulations on Property 197 Dr. Kypros Chrysostomides - 9789004482647 Downloaded from Brill.com10/01/2021 11:15:44AM via free access Table of contents xvii D Turkish settlers from mainland Turkey in the occupied part of Cyprus 198 1 Facts and Figures 198 2 Settlers and International law 201 2.1 The Fourth Geneva Convention 202 2.1.1 "Voluntary Settlement" 203 2.1.2 "Displacement of the Indigenous Population" 205 2.1.3 "Obligation to prevent such Settlement" 208 3 The Hague Regulations of 1907 210 4 The General Principles of International Law 210 5 Transfer of Settlers is a "War Crime" 211 VI UNITED NATIONS PEACE KEEPING IN CYPRUS - THE SO-CALLED "BUFFER ZONE" 215 1 The UNFICYP 215 1.1 Resolution 186 of 1964 216 1.2 UNFICYP's Mandate before 1974 218 1.3 Use of Force by UNFICYP 220 1.4 UNFICYP's Mandate after 1974 222 1.5 International Status of UNFICYP 225 2 The "Buffer Zone" 227 2.1 "Borders" or "Boundaries"? Neutral area? 229 2.2 Access to the "Buffer Zone" by Civilians 230 PART FOUR THE PROCLAMATION OF A PUPPET REGIME VII "UNILATERAL DECLARATION OF INDEPENDENCE" CONTRARY TO INTERNATIONAL LAW 237 General 237 2 The Stand taken by International Organisations and the International Community in general 240 2.1 The United Nations Organisation 240 2.2 The Council of Europe 242 2.3 The European Community 244 2.4 The Non-Aligned Movement 245 Dr. Kypros Chrysostomides - 9789004482647 Downloaded from Brill.com10/01/2021 11:15:44AM via free access xviii Table of contents 2.5 The Commonwealth 245 3 Creation of "States" under Conditions of Military Occupation - "Puppet States" 246 3.1 Puppet States 246 3.2 Presumption of Illegality 249 3.3 Developments in International Law in the 20th Century in relation to "Puppet States" - the Stimson Doctrine 251 3.3.1 The Case of Manchukuo 252 3.3.2 Croatia and Slovakia during the Second World War 254 3.3.3 Other Examples from the International Scene 255 3.3.3.1 Rhodesia 255 3.3.3.2 Bantustans 257 3.3.4 The Case of Bangladesh 258 4 The "TRNC" a Puppet State 259 4.1 Creation of the ''TRNC" after an Illegal Military Invasion and Continued Occupation of the northern part of Cyprus 260 4.2 Territory, Population and Legal Order in relation to the "TRNC" 262 4.3 Right of Self-determination 264 4.4 Control by the Occupying Power 272 4.5 Autonomous Communities 275 5 Concluding Remarks 277 VIII DECISIONS OF INTERNATIONAL AND NATIONAL COURTS IN RELATION TO THE PRESENT SITUATION IN CYPRUS 281 1 Overview 281 2 The Position taken by the ECHR and the ECourtHR as to the Legal Nature of the Occupied Territories of the Republic of Cyprus 283 2.1 In the State Applications 283 2.2 The Final Position taken by the Court in the Loizidou case 287 2.3 The Erroneous Position taken by the Commission in the First Individual Applications (Nos. 15299/89, 15300/89 and 15318/89) 290 2.4 Subsequent Cases 298 3 The "Anastasiou" Case before the Court of Justice of the European Communities (The Queen and the Minister of Agriculture, Fisheries and Food, ex parte Anastasiou (Pissouri) Ltd. and others 300 Dr. Kypros Chrysostomides - 9789004482647 Downloaded from Brill.com10/01/2021 11:15:44AM via free access Table of contents xix 4 The us Court of Appeals; Autocephalous Church of Cyprus v. Goldberg 304 5 The UK Special Commissioners Tribunal - Caglar v. Billingham (Inspector of Taxes) 308 6 Other Decisions of National Courts 311 IX FURTHER RAMIFICATIONS UNDER INTERNATIONAL LAW 317 Obligation of Non-recognition of the "TRNC" 317 2 Any Recognition of the "TRNC" is Fictitious and Revocable 324 3 Turkey's Responsibility for all Actions in the Occupied Areas 325 4 Implied Recognition 328 5 Acquisitive Prescription 330 PART FIVE FEDERALISATION AND EFFORTS FOR A SOLUTION x THE FED ERA TING PROCESS AND INTERNATIONAL LAW 335 General 335 2 The Meaning of "Federation" 338 3 The Meaning of "Confederation" 342 4 Sovereignty of Federal States and Specific Examples 345 4.1 Federal Republic of Germany 347 4.2 Switzerland 348 4.3 United States of America 348 4.4 Ermacora's Views 349 5 The Federating Process 350 5.1 Adoption of a Federal Constitution 352 5.2 The United Arab Republic 354 5.3 The German Empire 356 5.4 Italy and Yugoslavia 356 5.5 The Contemporary History of Yugoslavia - Extinction of a federal state 359 5.5.1 The Dissolution of the Socialist Federal Republic of Yugoslavia 359 5.5.2 Developments in Bosnia - Herzegovina 363 Dr.
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